EMPLOYERS MUST PROVIDE DISABLED EMPLOYEES WITH REASONABLE ACCOMMODATIONS IN THE WORKPLACE

The Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) protects physically and mentally disabled employees from discrimination. An employer cannot discriminate in their job applications, hiring, firing, training, pay, promotion, benefits, or leave against a disabled employee. Furthermore, an employer may not harass or retaliate against an employee who has a disability. Most critically, employers must provide disabled employees with reasonable accommodations at work.

When bringing disability claims, the LAD is more inclusive than the ADA. While the ADA does not include pregnancy itself as a disability and only a medical condition or complication due to pregnancy is considered a disability; the LAD includes even pregnancy itself as a disability. Also, the ADA does not protect an employee from an employer who is a private club while the LAD has no such limitation. 42 U.S.C. § 12111 (5)(B)(ii); N.J.S.A. 10:5-5(e).

The ADA and LAD protect employees whose disabilities substantially affect their major life activities. Such activities include hearing, seeing, speaking, thinking, walking, breathing, or performing manual tasks. Further, long-term disabilities/illnesses, such as cancer or diabetes, are still protected even though they are not permanent. However, if a disability is clearly short-term, for instance a cold or a sprain, it is generally not a “disability” which is protected. Finally, an employee’s disability does not need to be constant. Rather, disabilities which cause flair ups, such as chrome’s disease or cancer that is in remission, are also protected.

The accommodations which an employer must provide the disabled employee are to help them do their job or enjoy benefits in equal measure as other employees in the work place. Such accommodations include: physical changes to the workplace such as installing a ramp, modifying a workspace, or a restroom; providing a quieter workspace to someone with a mental disability; and modifying an employee’s time schedule or giving an employee time off for disability treatment.

However, under the ADA an employer must only provide an accommodation if they are aware that employee needs an accommodation because of a disability. Therefore, in order to make their employer aware, it is important that the employee request an accommodation from their employer instead of waiting or assuming such an accommodation will be provided. However, when requesting an accommodation the employee does not need to use any “magic language.” Simply telling their employer that they need an accommodation is enough. Indeed, if the employer is aware that the employee requires an accommodation the employer must provide such an accommodation even if the employee did not request it.

Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a settlement for $70,000 when Carolina Creek Christian Camp discriminated against a pregnant employee. There, shortly after being hired, Ms. Reed, the camp registrar, found herself pregnant. Ms. Reed also developed gestational diabetes, a common occurrence among pregnant women. When Carolina Creek found out about Ms. Reed’s diabetes, even though she was perfectly capable of doing her job, Carolina Creek demoted Ms. Reed to her assistant’s position and put that assistant in her place. Also, when Ms. Reed returned from her maternity leave, Carolina Creek further demoted her, and finally terminated her for complaining about the way they were treating her. The employer explained in their termination letter that they fired Ms. Reed because of her pregnancy and gestational issues. As a result Ms. Reed filed a claim through the EEOC resulting in a $70,000 settlement.

However, there are a few limitations under the ADA and LAD. The employee requiring the accommodation must be able to perform the essential job functions regardless of any accommodation provided. Also, the accommodation only has to be reasonable. Therefore, an employer can choose between different available accommodations, can take cost into account, and does not have to provide exactly what the employee requests.

If you are suffering from a disability and feel that your employer is not providing a reasonable accommodation, contact a New Jersey Employment Lawyer immediately at Mashel Law to assist you and, if necessary, put your claim in motion.